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American University Law Review Volume 52 | Issue 6 Article 6 2003 Before Brown: Reflections on Historical Context and Vision Genna Rae McNeil Follow this and additional works at: http://digitalcommons.wcl.american.edu/aulr Part of the Law Commons Recommended Citation McNeil Genna Rae. "Before Brown: Reflections on Historical Context and Vision." American University Law Review 52, no.6 (2003): 1431-1460. This Conference & Symposia is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Before Brown: Reflections on Historical Context and Vision This conference & symposia is available in American University Law Review: http://digitalcommons.wcl.american.edu/aulr/vol52/ iss6/6 MCNEIL.AUTHORCHANGES2.DOC 11/18/2003 2:00 PM ESSAYS BEFORE BROWN: REFLECTIONS ON HISTORICAL CONTEXT AND VISION* ** GENNA RAE MCNEIL I am . concerned . that the Negro shall not be content simply with demanding a share in the existing system. [H]is fundamental responsibility and historical challenge is . to make sure that the system which shall survive in the United States of America . shall be a system which guarantees justice and freedom for everyone. Charles Hamilton Houston1 * This Essay is dedicated to the Honorable Damon J. Keith (Senior Judge, Sixth Circuit Court of Appeals), a conscientious, consistent, and courageous advocate of freedom, equality, racial justice, and human rights. His brilliant and instructive opinions call this nation to the highest standards of a just society. This essay is also dedicated to Pearl Lee Walker McNeil (Ph.D., 1979, American University), whose exemplary life of integrity, distinguished teaching, human rights advocacy, practical ecumenism, sacrifice, and love remains an inspiration. ** Professor of History, University of North Carolina at Chapel Hill, author of GROUNDWORK: CHARLES HAMILTON HOUSTON AND THE STRUGGLE FOR CIVIL RIGHTS (1983), co-editor with John Hope Franklin of AFRICAN AMERICANS AND THE LIVING CONSTITUTION (1995), and author of a forthcoming book-length study of State [of North Carolina] vs. Joan Little, 1974-1975. This Essay is a revision of a paper presented as a panelist in the March 2003 symposium at the American University Washington College of Law, entitled “The Quest for Equal Opportunity: Brown nears 50, San Antonio Turns 30.” The author expresses appreciation to her fellow panelists. Their presentations and responses to questions contributed to this published revision. The author is especially indebted to Professor Isaiah Baker (Washington College of Law) and Carla Jean-McNeil Jackson, Esq. (former President of the Moot Court Board) for their careful and critical reading of the entire manuscript. In addition to those authors cited—particularly Mary Frances Berry, Derrick Bell, Raymond Gavins and Colin Palmer—the author gratefully acknowledges the insights derived from the scholarship of and discussions with James Melvin Washington (1948-1997). The comments of members of the symposium’s audience, especially Alonzo Smith (Research Historian, Museum of American History, Smithsonian Institution) and Jesse Fenty (student, Washington College of Law) are also acknowledged with appreciation. 1. Audio tape: Untitled (Dec. 1949) (on file with Charles Houston, Jr. and Mykola Kulish of Kinocraft, Inc.) [hereinafter Audio tape]. 1431 MCNEIL.AUTHORCHANGES2.DOC 11/18/2003 2:00 PM 1432 AMERICAN UNIVERSITY LAW REVIEW [Vol. 52:1431 I want to put myself out of business. I want to get things to a point where there won’t be a National Association for the Advancement of Colored People—just a National Association for the Advancement of People, period. Thurgood Marshall2 On May 17, 1954 the Supreme Court declared racial segregation of public schools unconstitutional in Brown v. Board of Education3 and Bolling v. Sharpe.4 Responses, varying from jubilation to cautious optimism, arose throughout the land. In New York, after processing the shock of a unanimous decision, the staff of the National Association for the Advancement of Colored People (NAACP) and the NAACP Legal Defense and Educational Fund (LDF) were at first awe-stricken; then, they celebrated. In the midst of the party at the LDF offices, Thurgood Marshall, the Director-Counsel and lead attorney for Brown, warned, “‘[Y]ou fools go ahead and have your fun . we ain’t begun to work yet.’”5 In Nashville, Tennessee, a black girl walked down the street with a teacher from her segregated school. That girl, Mary Frances Berry,6 later recalled reading newspaper headlines announcing the Supreme Court ban on segregation and saying, “Look at this! This is going to be great! Starting next year the kids will all be going to school together!”7 Her teacher responded, “I’m not sure it’s going to happen quite next year.”8 African Americans hoped that the 1954 school desegregation decisions would usher in a new era of integration and equal citizenship rights for black people in the United States. As historian 2. John Geiger, Mr. Civil Rights . ., PITTSBURGH COURIER, May 29, 1954, at 13. 3. 347 U.S. 483 (1954). Brown consolidated four cases from Kansas, South Carolina, Virginia, and Delaware. See Brown v. Bd. of Educ., 98 F. Supp. 797 (D. Kan. 1951); Briggs v. Elliot, 103 F. Supp. 920 (E.D.S.C. 1952); Davis v. County Sch. Bd., 103 F. Supp. 337 (E.D. Va. 1952); Gebhart v. Belton, 91 A.2d 137 (Del. 1952). 4. 347 U.S. 497 (1954). Bolling was a companion case to Brown that ruled on the constitutionality of racially segregated schools in the District of Columbia. 5. JAMES T. PATTERSON, BROWN V. BOARD OF EDUCATION: A CIVIL RIGHTS MILESTONE AND ITS TROUBLED LEGACY 71 (2001). 6. Mary Frances Berry is a Professor of History at the University of Pennsylvania and a former chairperson of the United States Civil Rights Commission. She is the author of numerous books on history, race and law, including BLACK RESISTANCE- WHITE LAW: A HISTORY OF CONSTITUTIONAL RACISM IN AMERICA (1994) [hereinafter BERRY, BLACK RESISTANCE-WHITE LAW] and THE PIG FARMER’S DAUGHTER AND OTHER TALES OF AMERICAN JUSTICE: EPISODES OF RACISM AND SEXISM IN THE COURTS FROM 1865 TO THE PRESENT (1999). 7. BRIAN LANKER, I DREAM A WORLD: PORTRAITS OF BLACK WOMEN WHO CHANGED AMERICA 84 (1989). 8. Id. MCNEIL.AUTHORCHANGES2.DOC 11/18/2003 2:00 PM 2003] BEFORE BROWN: HISTORICAL CONTEXT AND VISION 1433 John Semonche explained, the nation sought to distinguish itself from others—nearly two centuries before Brown—with charter documents that proclaimed an egalitarian “creed.”9 By the twentieth century, the language of the charter documents could be construed as a “civil theology,” or “a common faith” on which “American nationhood rests . [and which] promises fair, equal, and just treatment to all.”10 After framing their arguments for equality as “internal criticism of American society [that] is premised upon . calling attention to a discrepancy between belief and action,”11 African Americans and their advocates hoped Brown would be the signal to close the gap between white and African American rights. The ruling seemed to affirm that the Constitution sided with those who believed that Thomas Jefferson’s words in the Declaration of Independence meant that “all human beings are created with equal rights that their fellow creatures should respect and that the government should protect.”12 However, Brown initiated a new era of struggle in this nation’s history. The era was marked by an expansion of activities pressing for greater civil rights for African Americans throughout the country.13 Yet the massive resistance to desegregation disclosed an underlying truth. Although both Brown and Bolling had far-reaching implications and consequences for race relations, they were silent on the deeper roots of the problems facing African Americans. As Robert Carter, the NAACP’s First Assistant Special Counsel at the time, later recalled, “[f]ew in the country, black or white, understood in 1954 that racial segregation was merely a symptom, not the disease; that the real sickness is that our society in all of its manifestations is 14 geared to the maintenance of white superiority.” 9. See JOHN SEMONCHE, KEEPING THE FAITH: A CULTURAL HISTORY OF THE U.S. SUPREME COURT 5 (1998) (arguing that the Court, in interpreting the Constitution and furthering the rule of law, has helped promote and shape both American identity and American unity). 10. Id. at 6. 11. Id. at 10. 12. See id. at 9 (interpreting the tenets of the Declaration of Independence). 13. See generally BETTYE COLLIER-THOMAS & V.P. FRANKLIN, MY SOUL IS A WITNESS (1999) (chronicling the era following the Brown decision and the expanded struggle for equal rights in education, public accommodations, athletics, voting, employment, and other areas). 14. Robert Carter, The Warren Court and Desegregation, 67 MICH. L. REV. 237, 247 (1968). I concur with my esteemed colleague, Erwin Chemerinsky, who noted that a unanimous opinion in Brown would have been impossible if Justice Warren had insisted on acknowledging the immorality of segregation, as was declared in Loving v. Virginia. In Loving, the Court held that the racially discriminatory statutes at issue had an “overriding purpose . [or] justification as measures designed to maintain White Supremacy.” 388 U.S. 1, 11 (1967). MCNEIL.AUTHORCHANGES2.DOC 11/18/2003 2:00 PM 1434 AMERICAN UNIVERSITY LAW REVIEW [Vol. 52:1431 The inescapable context of Brown and Bolling can be briefly summarized in four historical facts: (1) the several decades of the Black Freedom Movement; (2) the emergence and articulation of an African-American jurisprudence within one period of that struggle in the first third of the twentieth century; (3) the persistent and prevailing Post-Reconstruction practice and ideology of white superiority, supported by violence and law; and (4) competing visions of a just, democratic society offered by dissenters active during the first half of the twentieth century.
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